All posts by Susan Horwitz

As you know, on November 4, 2014 Massachusetts voters approved ballot question 4 which enacts a new section of MGL c. 149 section 148C and provides for Massachusetts employees to earn and use 40 hours of sick leave in a calendar year.

This new law is effective July 1, 2015. The law applies to employees of private and public entities with eleven or more employees. However, employees employed by cities and towns shall not be considered employees for purposes of this law until this law is accepted by vote of the city or town as a local option or by appropriation as provided for in Article CXV of the Amendments to the Constitution of the Commonwealth. A local option law for a city must be voted on by the city council in accordance with its charter and in the case of a town by town meeting or town council.

Although most unionized employees already earn sick leave, some benefits of the new law that may not already exist are as follows:

Any and all of the 40 hours of sick leave can be used to care for an employee’s child, spouse, parent or parent of spouse.

The sick leave can be used for both physical and mental illness.

The sick leave can be used for routine medical appointments for the employee or family members.

The sick leave can be used for time needed to address the psychological, physical or legal effects of domestic violence.

Employees may carry over up to 40 hours of unused sick time to the next calendar year.

An employer may only require medical certification for use of sick time when an earned sick time period covers more than 24 consecutively scheduled work hours and such certification cannot require that the documentation explain the nature of the illness or the details of the domestic violence.

It is unlawful for the employer to use the taking of earned sick time as a negative factor in any employment action such as evaluation, promotion, disciplinary action or termination or to otherwise discipline an employee for using sick time.

This new law provides minimum benefits and employers can adopt or retain earned sick time policies that are more beneficial than the requirements of this Law. Sick leave also continues to be subject to collective bargaining. However, any sick time employment benefit program or plan cannot provide any lesser sick time rights than the rights established under this law.

This is in follow up to our blog post concerning the amendment of the civil service residency statute, MGL c. 31 sec 58. Since this amendment was part of the State Budget and since the Budget has an emergency preamble, the amendment to 31 sec 58 was also effective immediately. Therefore the amendment is in effect and it would be appropriate for a police and/or fire fighter unions in civil service communities to request bargaining with their municipal employers to increase the 10 mile residency requirement as the amendment allows.

The Governor has just signed the budget which includes an amendment to MGL c. 31 sec 58.

C. 31 sec 58 is a section of the Civil Service Law and addresses “Municipal police officers and firefighters; qualifications.” It includes a residency requirement for civil service police officers and firefighters, stating that within 9 months of appointment a person must reside within the city or town where he/she is employed or at any other place in the Commonwealth that is within 10 miles of the perimeter of such city or town. The Amendment to sec 58, included in the budget, provides that a city or town may increase the 10 mile residency limit under a collective bargaining agreement negotiated under chapter 150E. Therefore, police and firefighter unions in civil service cities and towns may now negotiate to expand the civil service 10 mile residency requirement of sec 58 beyond the 10 miles.

What remains unclear is the relationship of this amendment and the residency requirement of MGL c. 41 sec 99A which requires police officers and firefighters to reside “within fifteen miles of the limits of said city or town.” For any city or town where the police and fire departments are not covered by the civil service statute, this new amendment will have no impact and those police officers and firefighters continue to be covered by c. 41 sec 99A and must reside within 15 miles of the City or Town where he/she is employed. As for civil service communities, at a minimum, the amendment to c. 31 sec 58 certainly provides for collective bargaining in order to increase the 10 mile limit of sec 58 to the 15 mile limit of sec. 99A.

Based upon the case Mulrain v. Board of Selectmen of Leicester, 13 Mass App Ct. 48 (1982) it is reasonable to take the position that the 15 mile limit of c. 41 sec 99A already superseded the 10 miles requirement of c. 31 sec 58 since the Mulrain case addressed the conflict between the 2 statutes and stated that:

“We hold that the more specific provisions of the new sec 99A control the more general provisions of new c. 31 sec 58, concerning the effect of town by-laws.”

However, the Mulrain decision did not specifically address the conflict between the 10 mile and 15 mile limits.

When the Civil Service Commission recently decided the case of Erikson v. Rockland Fire Department, I-12-100, (January 24, 2013), it found that c. 31 sec 58 continued to require civil service firefighters to reside within 10 miles of the city or town where he/she was employed. That case did not address the conflict with c. 41 sec 99A and was a Civil Service Commission decision, not a judicial determination. Furthermore, when the Appeals Court in City of Lynn vs. Lynn Police Association, 12-P-1122 (March 27, 2013), addressed the applicability of c. 41 sec 99A to the City of Lynn police officers, it affirmed that the 15 mile limit of c. 41 sec 99A applied and that under the provisions of c. 41 sec 99A the only way that a city or town can impose a more stringent residency requirement is through collective bargaining. Therefore the Appeals Court made it clear that the 15 mile limit of c. 41 sec 99A governed even though Lynn is a civil service community. The Court made no reference to c. 31 sec 58.

Therefore, as a result of this amendment to c. 31 sec 58, public safety unions can now bargain over the appropriate distance for a residency obligation. At a minimum the bargaining can move the 10 mile requirement to 15 miles so as to reconcile c. 41 sec 99A with c.31 sec 58. However, since this amendment is the Legislature’s most recent action concerning residency for civil service police and firefighters, under the principles of the Mulrain case, it certainly can be argued that municipal employers and public safety unions can bargain for a distance in excess of the 15 mile limit since the new amendment does not put any cap on the appropriate distance for a residency requirement and merely says that the distance may be increased under a collective bargaining agreement negotiated under chapter 150E.

In addition, there continue to be bills being considered by the Legislature to further address residency requirements for police and firefighters. Some would increase the mile limitation and others would limit the residency requirement to a period of years and still others would preclude requiring residency within a city or town. We will continue to monitor the progress of these other bills and inform you if anything else changes. Stay tuned..

After a nearly 20 year battle between the Lynn Police Association and the City of Lynn, the Appeals Court has finally confirmed that State Law, MGL c. 41 sec 99A, concerning the residency of police officers and fire fighters controls any residency obligations for police officers or firefighters and that a City Charter does not have any relevance or control.

In this case, the Appeals Court ruled that the Decision issued by the Superior Court in 2000 between the Lynn Police Association and the City of Lynn is controlling. That Decision determined that MGL c. 41 sec 99A establishes residency as a term or condition of the employment of police officers and firefighters in Massachusetts and imposes a 15 mile statutory limit. The only way that a City or Town can impose a more stringent residency requirement is through collective bargaining. As Judge Grasso explained “the court finds an explicit indication of the legislature’s intent to tie local residency requirements to the collective bargaining process.”

Anticipating that the Appeals Court would agree with the Union and require bargaining over any residency requirement, the Union and the City bargained last year and reached agreement for the residency requirement for police officers in Lynn. Officers must now maintain residency in Lynn for the first 10 years of their employment.

This Decision by the Appeals Court confirms that any municipal employer who wants to require residency for police officers or firefighters more stringent than the 15 mile requirement of MGL c. 41 sec 99A must bargain with the Union.

The case is City of Lynn vs. Lynn Police Association, 12-P-1122, issued March 27, 2013 pursuant to Rule 1:28. The Union was represented by Sandulli Grace Attorneys Susan F. Horwitz and Jennifer Rubin. Attorney Horwitz also represented the Union in the original Superior Court case in 2000.

City of Salem, Mayor Driscoll continues to disregard her legal obligations to the City of Salem employees and its Unions. In March 2012 an arbitrator found that the City of Salem violated the Salem Police Superior Officers contract and past practice when Mayor Driscoll refused to pay a Police Captain, retiring after 30 years of service to the City’s Police Department for the earned benefits which all other retirees had received for over 25 years. The Mayor again disregarded her legal obligations when she removed Police Sergeant Peter Gifford from the Harbormaster position which he had held since 2001 and replaced him with a civilian employee. This was done without any bargaining with the Union as is required by state law. On August 24, 2012, the second arbitrator found, that based on 10 years of past practice that “the Superior Officers’ ‘own’ the Harbormaster work and the Employer is constrained from unilaterally removing that work from the bargaining unit.” The Arbitrator also stated that the “City violated the collective bargaining agreement and state law when it removed Sergeant Peter Gifford from the position of Harbormaster and replaced him with a civilian, non bargaining unit employee.”

Therefore twice in one year the Mayor has been found by an arbitrator to be in violation of her legal obligations to the working men and women of the City of Salem. By disregarding her legal obligations and ignoring the rights of the employees, the Mayor has also compelled the Salem Police Superior Officers Association and the City of Salem to expend its resources to fight over its employees clear rights. The mayor’s approach is clearly wrong and it is not working. Hopefully, the Mayor will finally learn to show the Union workers some respect and will act to meet her legal and contractual obligations.

The Salem Police Superior Officers Association is a Local of the Massachusetts Coalition of Police (MCOP) and is represented by Sandulli Grace Attorney Susan Horwitz.

In an arbitration case, the Arbitrator found that the City of Salem violated the contract and past practice when Mayor Driscoll refused to pay a Captain, retiring after 30 years of service to the City’s Police Department, for the various benefits and stipends which all other retirees had received for over 25 years. The Mayor claimed that there was not explicit contract language requiring payment for the various benefits and stipends upon retirement and therefore, even though every retiree had received the benefits and stipends when he/she retired, the Mayor refused to pay the benefits and stipends to this Captain.

In his Decision, the Arbitrator explained that it is clear that the City officials including the Mayor, Personnel, Finance, Treasury officials and Police Chiefs were aware of the payments and that the City Council funded the payments when it voted appropriations to fund the contracts and Department budgets. The Arbitrator found further that the evidence discloses that the benefit/stipend payment practices up to the grievant’s retirement “were unequivocal, clearly enunciated and acted upon for a considerable period of time, easily discernible over a long period of time as a fixed and established practice accepted by both parties.” In addition, the Arbitrator found that the “past practice” concerning unpaid benefits and stipends “had become an implied-in-fact contract term.” “As a binding past practice is an enforceable, implied-in-fact contract term, it may only be altered by the collective bargaining process.” Therefore, the retired Captain was entitled to be paid fully for the unpaid benefits and stipends as the other retirees before him received and the City of Salem must continue to comply with the pertinent contract provisions and the parties’ past practices unless and until the parties properly negotiate to amend or alter the parties past practices. The Union was represented by Sandulli Grace Attorney, Susan Horwitz.

Arbitrator rules that a teacher without professional teacher status is entitled to procedural protections under the collective bargaining agreement before a School Committee can non-renew the teacher’s appointment.

In this case, the teacher was notified of the intention to non-renew her appointment on May 26, 2009 and then dismissed on June 7, 2009.The arbitrator found that the teacher was denied reappointment as a consequence of the evaluation process and that the procedures followed in that evaluation process violated the provisions of the collective bargaining agreement.The collective bargaining agreement required that the information that formed the basis for the recommendation to non-renew a teacher must be properly documented before the notice of intent to non-renew.The arbitrator also specifically relied on DESE regulations which provide that a teacher must be given “a reasonable amount of time… to implement the recommendations for improvement of performance and to meet performance standards.”In this case the arbitrator found that the teacher’s supervisor failed to give the teacher anything in writing to establish any deadlines.The arbitrator noted that “Experience demonstrates that parties to a conversation often draw different impressions about the substance and tenor of the discussion.And, consequently, it is generally a good practice to follow-up important conversations with confirmatory letters or memoranda.”

Therefore, the School Department’s failure to document the teacher’s claimed deficiencies and give the teacher proper written notice of those alleged deficiencies along with an opportunity to correct the issues violated the collective bargaining agreement.

The teacher was therefore ordered to be reinstated with full back pay and benefits.

Sandulli Grace successfully argued before the Appeals Court that a teacher is eligible for creditable service for retirement for service performed out of state so long as that service is in a day school that is under exclusive public control.It does not have to be for a school committee or a board of trustees.In the Weston case, the teacher had taught special needs students in Virginia before the public schools provided special education.Rodney Weston taught in a school in Fairfax Virginia which was under the control of the Department of Health, a public entity.The Teacher’s Retirement System had denied his application to buy back the service credit because the employer was not a school committee or a board of trustees.The Appeals Court found that the MTRS, CRAB and the Superior Court were all wrong in their interpretation of the statute by improperly limiting the service eligible for service credit.The case is Rodney Weston vs. Contributory Retirement Appeal Board, 09-P-475 March 18, 2010.

On Wednesday morning February 24, 2010 the Joint Legislative Committee on State Administration and Regulatory Oversight held a hearing to address the Governor’s improper efforts to stack the Civil Service Commission by eliminating the salary of 3 of the 5 Civil Service Commissioners. The Governor’s plan would completely politicize the Commission by puttng virtually all the power in the chair who is answerable directly to the Governor.

At the hearing there was a tremendous outpouring of opposition to the Governor’s proposal. The hearing room was overflowing with representatives from numerous police organizations clearly leading the opposition to the Governor’s efforts. Tom Nee, President of the Boston Police Patrolmen’s Association testified as did Sandull Grace Attorney Susan Horwitz. See her comments below. Also the Massachusetts Coalition of Police was represented by Vice President Kenneth Scanzio and Attorney Tim King.

The Committee members appeared very concerned with the Governor’s proposal and listened to the objections from the police union witnesses. The Committee members heard that the Civil Service Commission needs some fixing but that the Governor’s proposal is not the appropriate action and in fact will only make things worse. It is wrong to politicize an agency whose primary mission and purpose is to keep politics out of public emloyment. The Civil Service Commission is sometimes the only place where employees can turn to insure fair treatment in their employment. The Committee must act within ten days of the hearing and report whether it approves or disapproves such plan and then at least one branch at the general court must vote it’s disapproval by a majority vote in order to prevent the Governor’s plan from taking effect as of March 27,2010.

Susan’s statement to the Joint Legislative Committee on State Administration and Regulatory Oversight:

My name is Susan Horwitz and I am an attorney representing the Boston Police Patrolmen’s Association. I also have been representing individuals before the Civil Service Commission for over 25 years and I previously worked for the Federal government as a personnel officer implementing federal civil service law.

I am here today to ask you to disapprove the Governor’s actions to improperly restructure the Civil Service Commission.

The role of the Civil Service Commission as described in the Statute, Chapter 31, is to enforce the basic Merit Principles as described in the law. The agency is responsible for assuring fair treatment of all applicants and employees in all aspects of personnel administration without regard to political affilation and to assure that all employees are protected against coercion for political purposes and are protected from arbitrary and capricious actions.

The State Courts have further emphasized that the fundamental purpose of the civil service system is to guard against political considerations, favoritism, and bias in government employment decisions and to protect public employees from political control.

I believe that if you take a close look at the Governor’s proposal you will see the irony in his proposal since it does not pass the standard of keeping politics and fairness in the structure of the Civil Service Commission itself. Were the Commission reviewing the personnel actions proposed by the Governor’s proposal it would surely find it in violation of merit principles and in contravention of the essence and purpose of the civil service law and system.

The Commission is designed with 5 commissioners and creates balance by ensuring that at least one member is a representative of labor, 2 representing management and also that no more than 3 commissioners can be from the same political party. Clearly this is designed to create balance and fairness and to assure that the Commission will carry out its role as a fair and neutral agency. It is clear that the Commission must not be influenced by politics and surely should not be restructured for political expedience. The proposed restructure will effectively eliminate the labor member of the Commission and will create a one person commission which will be directly responsive to the Governor since the Governor will determine which Commissioners are paid a salary. What had been an agency which has been and must be independent of executive control would now be entirely under executive control. It is essential that the Civil Service Commission be an independent watchdog to assure fairness in public employment. This proposed new structure effectively eliminates the guarantees of balance between labor and management and between political parties.

The purpose of terms of office is to insulate officials from being removed because those that appear before the agency may dislike decisions made by the agency. This new structure would effectively terminate current commissioners just to satisfy the complaints of those who are not willing to work within a fair and unbiased system.

The Governor’s proposal undermines the principles of the civil service system and politicizes an agency whose purpose is to keep politics out of public employment. The civil service commission is the only place where individual citizens can go to ensure fair treatment in their efforts to obtain public employment and to ensure their fair treatment as public employees.

The effort to rush in these changes is further evidence that there are political motivations to this proposaL. It is wrong to try to make these radical changes without proper review and analysis by the legislature. This proposal does not create efficiency in government it merely politicizes an agency which must be independent in order to carry out its mission.

We therefore ask you to disapprove of this dismantling and politicizing of the Civil Service Commission.

In a case between the Boston Police Patrolmen’s Association, Inc. (BPPA) and the City of Boston, Arbitrator Michael Ryan found that the Internal Affairs procedures of the Boston Police Department Rules are “benefits” incorporated into the collective bargaining agreement. And that the Union may grieve the City’s violation of its own IA policy.The arbitrator explained that the Internal Affairs rules “codified” the Department’s “complaint and investigatory procedures, thereby ensuring consistency and predictability” concerning the handling of complaints of misconduct against officers.An “inherent purpose” of the rules “is to ensure fair disciplinary procedures.”He therefore found that “the complaint and investigatory procedures” of the internal affairs rules “are advantageous to officers and constitute benefits” under the contract.

Relying on the language of the contract that states “benefits” specified in the published rules and regulations, general and special orders in force …” are continued in force, the arbitrator determined that “a benefit,” within the meaning of the contract article, encompasses policies, rules, and regulations that are advantageous to officers.”Therefore, the “complaint and investigation procedures” of the police department rules constitute such benefits and are incorporated into the collective bargaining agreement.As result, the internal affairs procedures are enforceable at arbitration.

Although the arbitrator in this case did not find that the Cityviolated its IA rules based on the facts at the hearing, his Decision represents a tremendous victory for the BPPA.The Decision enables the BPPA to require the Boston Police Department to follow its own internal affairs procedures.It also guarantees that the officers have an avenue for challenging violations of the internal affairs complaint and investigatory procedures.